Macquarie Vale Developments Pty Ltd v Hawkesbury City Council [2005] NSWLEC 276

Macquarie Vale Developments Pty Ltd v Hawkesbury City Council [2005] NSWLEC 276

On the construction of the Hawkesbury Local Environmental Plan 1989, the proposal was not a residential flat building class B because it lacked the common characteristics of group houses, villa homes, townhouses and terrace buildings, including separate entrances, separate identity and a direct relationship to the land. The proposal had characteristics of a residential flat building class C, including common stair access; and even if it did not fall within class C, cl 9 and the land use matrix prohibited development not referred to in the matrix. The development was therefore not permissible and the Court had no jurisdiction to determine the merits of the application.

Jurisdiction
Australia
Judgment Date
18 May 2005
Procedural Posture
Development Application Appeal / Ex Tempore Judgment on Preliminary Question of Permissibility
Outcome
Appeal dismissed and development consent refused.
Legal Topics
['development Consent' 'permissibility of Development in Zone' 'residential Flat Building Classification' 'construction of Local Environmental Plan']
['planning and Environment Law'] ['development Consent' 'permissibility of Development in Zone' 'residential Flat Building Classification' 'construction of Local Environmental Plan']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Development Application Appeal / Ex Tempore Judgment on Preliminary Question of Permissibility

Legal Issues

  1. 1 ['Whether the proposed development was a residential flat building class B permissible with consent in the Residential A zone under the Hawkesbury Local Environmental Plan 1989.' 'Whether the proposed development was a residential flat building class C and therefore prohibited.' 'Whether, if the development did not fall within either residential flat building definition in the LEP, it was prohibited by cl 9 and the land use matrix.']

Ratio Decidendi

On the construction of the Hawkesbury Local Environmental Plan 1989, the proposal was not a residential flat building class B because it lacked the common characteristics of group houses, villa homes, townhouses and terrace buildings, including separate entrances, separate identity and a direct relationship to the land. The proposal had characteristics of a residential flat building class C, including common stair access; and even if it did not fall within class C, cl 9 and the land use matrix prohibited development not referred to in the matrix. The development was therefore not permissible and the Court had no jurisdiction to determine the merits of the application.

Court Disposition

Appeal dismissed and development consent refused.

Orders

  • ['That the appeal in respect of the property known as 31 and 41a Flinders Place, North Richmond, is dismissed.' 'The development application submitted to Hawkesbury Council, and as amended, is determined by the refusal of consent.' 'The exhibits are returned.' 'There is no order as to costs.']